Category: Athletics in Crisis

Is the KZNA fight about egos?

So, now that the facts are becoming clearer, it is more obvious that the dispute in KwaZulu Natal is about settling old scores between individuals and not so much about what is good for the sport.

The attached court papers show us that (a) KZNA is seeking to stop an area of KwaZulu Natal forming its own athletics federation and affiliating to ASA; and (b) there is bad blood between Aleck Skhosana and Sello Mokoena.

KZNA v ASA Court Papers (1)

KZNA v ASA Court Papers (2)

To understand this properly, we need to backtrack a bit and remember some facts.

During 2011 members of KZNA approached Athletics South Africa with evidence of serious financial irregularities in the affairs of KZNA, then run by Skhosana. Just one project alone was audited and irregularities to the value of close to R100 000 were discovered. Skhosana was then a member of the ASA board and was instructed to investigate and report to the board. He did not. At the end of 2011 ASA reported the matter to the SA Police in terms of the Prevention and Combating of Corrupt Activities Act 12 of 2004, since that Act requires persons in authority to report corruption. Skhosana himself did not report the matter in terms of the Act.

In 2012 KZNA held an AGM to elect new office bearers. Due to the volume of complaints received from KZNA members, ASA sent its then CEO to oversee the election process. After a lot of politicking about who were actual members of KZNA or not, that was resolved and elections were held. Aleck Skhosana lost the election for president of KZNA to Sello Mokoena.

Later in 2012 the KZNA government completed a forensic report which made several damning findings against several persons, including against Skhosana. It stated that no action could be taken against him by the athletics authorities, as he was no longer an office-bearer. However, it did not explain why this did not apply if he was a licenced member of KZNA (which one has to assume as he had stood for election).

Mokoena took no further action on any of the information at the disposal of the new KZNA board.

Then, in 2013, Mokoena’s KZNA opposed a proposal to amend the ASA constitution to bring it in line with the Nasional Sport and Recreation Plan, which had been accepted by all federations (including ASA) at the Sports Indaba in 2011. The relevant provisions related to changing the boundaries of sports federations to reflect the geo-political boundaries in South Africa.

To explain, the Constitution of the Republic of South Africa provides for nine provinces, each with their own provincial administration. Under those provinces there is local government, which is divided up into 52 districts (strictly speaking 8 metros and 44 district councils). See the list of Local Government Councils in South Africa

The relevance of this move was to streamline funding. Provincial government has funding for sport, as does local government. The Constitution provides that provincial government has exclusive competence over provincial sport and concurrent jurisdiction over local sports facilities. One District or Municipal Council cannot fund activities in another District or Municipality.

However, ASA has desperately clung to the old ‘provincial’ boundaries, which have their origins in the apartheid era. So, we still have ‘Central Gauteng’ (CGA) which largely mirrors the boundaries of the old Southern Transvaal. But CGA covers two Metros (Ekhuruleni and Johannesburg) and the West Rand District. If you organise an event in Germiston (in Ekhuruleni) you can’t ask Johannesburg (which includes Soweto) to help fund it. None of them can legally fund a CGA team, as they may be funding athletes resident in another District or Metro.

In the Western Cape, we have Western Province, Boland and South Western Districts according to ASA, but the Constitution recognises Cape Town, West Coast, Overberg, Cape Winelands, Central Karoo and Eden. So local government again is limited in what funding it can given, other than to events directly in their area.

In short, there is no logical basis for the geographical boundaries in Athletics in South Africa. ASA has 17 ‘provinces’, South Africa has nine provinces. That should say enough.

Since there is no legal or financial basis for retaining the old apartheid model (which still recognises Transkei as a separate unit), why is it still in place after all of these years and why the vociferous opposition to the proposal to change (in a different article, the events of 2013 and 2014 will be explained) to the Sports Indaba instruction?

Simple: Empires. In most areas of South Africa, athletics has died. For example, ‘Border’ (ie the area named after the old colonial ‘border’ with Transkei) has all but collapsed. It does not send athletes to national championships anymore, other than one or two occasionally. It does not consistently hold track & field provincial championships. But it exists and has a vote, and has a president who will rule for life. Transkei Athletics is a sham. It was being investigated in late 2012 for serious financial irregularities, an ASA office report at the time indicated that it was effectively being run as a personal business of one or two individuals, with no financial systems in place. The list goes on (and it will all be disclosed). If the Sports Indaba model was introduced these units would disappear and the emperors would lose their thrones. ‘Border’ for instance, would break up into two or three different new unions or federations and Border, Eastern Province and Transkei would disappear to become Eastern Cape (something that the ASA Council had decided on by 2009 already). All the emperors would have to stand down and compete in a bigger pool.

So what has this to do with KZNA. KZNA already reflects the political boundaries of KwaZulu Natal. But that is only at provincial level. It does not have district members, only clubs. So all a president needs to do is get the clubs of Durban to support him and the rest is easy. It is not difficult to see how one district in KZNA (eThekwini) rules the rest, as it will have the most clubs and members. There is no doubt that only 2 or maybe 3 districts out of 11 in KZN are active in the activities of KZNA, other than at school level. No doubt Mokoena will point to isolated projects or clubs, but there is no sustainable athletics in the majority of the districts of KZN.

If the emperor had accepted the new model proposed in 2012, which meant that KZNA would be made up of 11 districts, with the clubs affiliating to the districts, he stood the risk of having to garner votes from 11 districts, most of which he was doing nothing for, and not only getting the majority of the Durban clubs to vote for him. And teams would represent districts, not ‘provinces’ so individual emperors would not be able to boast to each other about how many medals ‘they’ had won. Being a ‘provincial’ president did not seem as attractive anymore and thus had to be opposed at all costs.

So, let’s come back to the current dispute. You have two parties – ASA and KZNA – who are both vehemently opposed to rearranging the boundaries in athletics. One is lead by Skhosana, who knows Mokoena and KZNA could alter his destiny by pursuing the corruption issue from when Skhosana ran KZNA. The other is lead by Mokoena, who seems to have run out of friends and who knows that Skhosana has every reason to want to remove him.

We have seen why ‘provincial’ presidents don’t want to change the boundaries, as their empires would collapse.

Why is ASA against it? Because they control the vast majority of ‘provinces’ and are propping up tame presidents who will do what they are told. Add to that, the power brokers in South African athletics – Boland Athletics, who have no interest whatsoever in a new dispensation, as they would cease to exist and would split into Overberg and Cape Winelands. Not only would they cease to exist but someone may start scratching in their books and find if there is any truth the allegations which were made in 2012. If uMgungundlovu is allowed to join ASA as a member, what is to stop any other District or Metro applying to be a member?

So, ASA are unlikely to ever accept a new District becoming a full member of ASA.

Throw into the mix uMgungundlovu, who want to implement the National Sports Plan by being a district union or federation and you have the fuse which is going to ignite the war between Skhosana and Mokoena, dragging their federations into court. All because Mokoena thinks ASA might recognise uMgungundlovu, which is unlikely to ever happen.

To summarise – this fight is about egos. Not about athletics or athletes, but administrators with huge big egos.

The beginning of the end for KZNA?

This is how it all starts. The statement from the CEO of ASA.

Anyone who has been around in the sport of Athletics (or any sport for that matter) in South Africa for a while will identify the signs immediately. It is merely a matter of time, but Sello Mokoena and his KwaZulu Natal Athletics board are dead men (and women) walking.

What I am talking about is the recent media release from Athletics South Africa, which is full of invective against KZNA (see the link above). If one was naïve and read this completely without context, it would seem that KZNA is a hotbed of political agitation against ASA, while at the same time it is destroying the sport in the province, which requires the strong hand of the national federation to step in an remove the trouble makers. If the statement is to be believed, the other 16 provinces, off their own bat, decided that enough was enough and KZNA should be called to order for attacking their beloved federation and the ASA board.

Based on this, the next step is to pile pressure of KZNA by setting up a commission of enquiry, which will find serious wrongdoing on the part of the KZNA board. Because of this, they will be removed by ASA and a new ‘interim’ board will be inserted in their place. The current board will receive lengthy suspensions from the sport, which will neutralise them and stop them sowing their anarchist views. If they fight back, there will be people set up in the province to undermine them from the inside.

It has happened before. It happened to Abrie de Swardt at South Western Districts. It happened to so many people in Eastern Province it is difficult to name all of them. There are examples in so many provinces. Nothing new, and within a month or two Mokoena and his board will be consigned to history and all the other provinces will be quick to jump in to sing the praises of ASA and its leadership for getting rid of this ‘cancer’ in the sport. Mostly because they are scared they will be next.

It’s the way it has always been.

However, it should not be. Not in 2017 and not in South Africa.

At the same time as the courts are managing to keep South Africa together by consistently applying the Constitution without fear or favour, it seems that everywhere else no-one cares about the law or the Bill of Rights.

Let’s start with some basic legal facts: Athletics South Africa is a company (a Non Profit company). It is bound by the Companies Act of 2008.

Why is that relevant?

For two reasons. Firstly, ASA does not actually have a ‘constitution’. It has a Memorandum of Incorporation (MOI). The MOI is a essentially the constitution of the company, but with one major difference. It is assumed (incorrectly, but that is for another article) that the basis of a voluntary association is a contract – the members agree to abide by the constitution as if they were entering into a contract. So if the constitution says the members must jump, then they must jump. However, with a company, the MOI does not work that way. A company cannot tell its members what to do, the members tell the company what to do. At best, all a company can do  is to terminate the membership of the member who ‘misbehaves’ (at least with an NPC if the MOI allows it; with a profit company this is not possible). So, a company cannot place a member under ‘administration’ unless there is a provision in the member’s (ie KZNA) constitution permitting this (even then it would be debateable).

Secondly, in terms of the Companies Act, the company is accountable to its members. They are not only permitted to question the financial status of the company, it can be argued that they are obliged to do so. It must be viewed with extreme suspicion when a board of a company refuses to make financial statements available and to answer questions about them. If there is nothing to hide, the company would answer them.

The Bill of Rights also guarantees the right of freedom of expression. That means that no-one can be punished for expressing their opinions (provided they don’t step over the line into defamation).

The ASA statement says that: “Further, the Council said they also want the Task Team to probe media reports emanating from Board Members of KZNA which the Council deemed not to be in line with the constitutional protocols of ASA.”

Now, a Google search doesn’t show any media reports emanating from KZNA in the recent past. Nor does the ASA constitution provide for any ‘protocol’ for office-bearers of members of ASA when speaking to the media. Most importantly, what about the freedom of expression, a constitutional right?

Then it states that: “The sequence of events of the day followed the earlier barring of a co-opted KZNA delegate to the Special General Meeting (SGM) which preceded the Council Meeting. The ASA refusal was deemed in line with the constitution of the national federation. KZNA had two delegates, one of which was eligible to participate. The delegate allowed, declined to participate and stayed out of the entire session of the SGM.”

There is nothing at all in the MOI of ASA or in the Companies Act which permits the ASA as a company to determine who may represent a member (ie KZNA). It is fair for the company to ask if the person is authorised to represent the member, but once that is established there is no right for ASA to decide who the representatives may be. In any event, the Companies Act allows for proxies (see s 58), and this cannot be altered by the MOI – in other words the company (in this case ASA) has to comply with the Act.

One of the fundamental problems is that, despite being a company, ASA’s ‘constitution’ (ie MOI) does not comply with the Companies Act. Before it picks on its members for their constitutions, maybe it should get their own house in order.

Unfortunately, KwaZulu Natal Athletics are the authors of their own misfortune. In 2013, when the Companies Act came into full effect, a proposal was made to amend the ASA MOI to comply with the Companies Act (and also the National Sport and Recreation Plan) but KZNA was the most vociferous opponent. Had the ASA MOI been amended then, none of the pain it is going to suffer would have happened.

But, one may ask, why the sudden attack on KZNA?

One can only guess, but does it maybe have something to do with the fact that the IAAF Ethics Commission (the predecessor the Athletics Integrity Unit, and which is still dealing with matters predating the AIU) has been looking into the reports of financial irregularities before 2012 after someone in KZN reported it to them? Or are the police at last investigating the matter which was reported to them in early 2012 in terms of the Prevention and Combating of Corrupt Activities Act 12 of 2004? The report compiled by the KZN Government in 2012 shows clear evidence of fraud and forgery and that documents were signed by the previous leadership of KZNA which was false. Has KZNA realised that its failure to act on the evidence of fraud and corruption renders them liable to prosecution on terms of the Prevention and Combating of Corrupt Activities Act and now they are taking action?

One has to ask why KZNA did not act on this earlier.

We can only guess what motivates the ASA statement.

But one thing that is certain, if the pattern is followed which was used so often in the past, the current board of KZNA will disappear into to oblivion in the near future. The current leadership of ASA (which is largely the same people as were involved before 2009) does not put out statements like the one it did if it does not intend dire consequences for the target. ASA’s stance is too drastic for it to be able to back down and not lose face.

How does KZNA now react? We will soon know how courageous they are.

Who is Making the Decisions?

In 2008 South African company law underwent a major change. Why is this relevant to the sport of Athletics?

Quite simple really, the national federation in South Africa was incorporated as a company under section 21 of the old Companies Act in 2006. It’s registration number is Reg No 2006/034767/08.

In 2008 a new Companies Act (No 71 of 2008) was passed. It radically changed the way in which companies are regulated. Some of the major changes were that certain provisions are automatically applicable to a company, unless expressly excluded, and some can’t even be excluded. It also changed the old name of “Association incorporated under s 21” to Non-Profit Companies (NPCs). It made certain provisions applicable to NPCs.

But the Act was not brought into effect until 2011, which happened on 1 May that year. Crucially, certain transitional arrangements were included, which gave companies two years to comply with the new Act. So, by 1 May 2013 all companies had to fully comply with the Act.

Still, how does that affect the sport of Athletics?

Athletics South Africa NPC’s constitution were the Articles of Association in terms of the old Act. (Interestingly, the Articles filed with CIPC are not the same as the constitution, but that for another time. Let’s take it, as everyone always has, that the constitution was the Articles of Association.) Now this part gets a bit complicated, so bear with us. In terms of the new Act the Articles of Association became the Memorandum of Incorporation (MOI). Until 1 May 2013, if there was a clash between the Act and the MOI, the MOI won. After 1 May 2013, the Act wins.

Now, to clear up something else. The Act is very specific. Only certain other laws trump the Companies Act. These are:
• Auditing Profession Act, 2006;
• Labour Relations Act, 1995;
• Promotion of Access to Information Act, 2000;
• Promotion of Administrative Justice Act, 2000;
• Public Finance Management Act, 1999;
• Securities Services Act, 2004;
• Banks Act, 1990.
Why this is relevant is that no-where does the Act provide that the constitution or MOI of another organisation (ie SASCOC) can override the Companies Act, nor does the National Sport and Recreation Act override the Companies Act.

Again, why is this important?

For the following reasons:

Section 4 of Schedule 1 says:
“If the Memorandum of Incorporation of a non-profit company provides for the company to have members, it—
(a) must not restrict or regulate, or provide for any restriction or regulation of, that membership in any
manner that amounts to unfair discrimination in terms of section 9 of the Constitution;
(b) must not presume the membership of any person, regard a person to be a member, or provide for the automatic
or ex officio membership of any person, on any basis other than life-time membership awarded to a person—
(i) for service to the company or to the public benefit objects set out in the company’s Memorandum of
Incorporation; and
(ii) with that person’s consent.”

Put in plain English: You can no longer have ex officio members of Athletics South Africa, nor can anyone become a member of Athletics South Africa automatically (you have to join). The effect is this: Office Bearers can no longer be regarded as members of Athletics South Africa, unless they are members in their own right – ie they have joined as a member (keep in mind that other than officer bearers and honorary members, ASA does not have individuals as members).

So since 1 May 2013, office bearers are no longer members of ASA.

Section 5 of Schedule 1 says:
‘(1) If a non-profit company has members, the Memorandum of Incorporation must—
(a) set out the basis on which the members choose the directors of the company; and
(b) if any directors are to be elected by the voting members, provide for the election each year of at
least one-third of those elected directors.

ASA has members, so this provision applies. What it expressly states is the MOI must set out the basis on which members chose the directors (ie board members). Since board members can no longer be regarded as members of ASA in terms of s 4 of Schedule 1, they can’t participating in choosing who the directors are. So any election, since 1 May 2013, where board members (or any other office bearers – eg members of commissions) participated in the election, has been invalid.

And s 5(1)(b) of Schedule 1 is also a problem: In terms of the Act, the MOI must (as in has to) provide for the election of at least 1/3 of the elected members. In other words, every year 1/3 of the ASA board has to stand down and either be re-elected or new directors have to be elected. The days of a slate remaining in power for four years ended in 2013.

Athletics South Africa NPC has not amended its MOI, as required by the Act. It is thus in breach of the Act. However, it is not good enough to say, whoops, we didn’t do it but who cares. The Act is specific, where there is a conflict between the Act and the MOI, the Act takes precedence. In many aspects, the Act deems the MOI to have been amended (more on that at a later date).

For now, let’s concentrate on two aspects: Board (and commission) members are no longer members of ASA. The Act is clear on that. So they can’t vote as members and if they have, they have tainted that election.

And one third of the board has to be re-elected every year. If that hasn’t been happening, the Act has been breached and people are sitting as board members in breach of the law.

How is that relevant to the sport of Athletics: When the board of ASA decided to omit athletes from the team to the recent IAAF World Championships, were they acting legally?

It would seem not.